Illegal Entry Into The U.S. Is A Crime

Mike Rosen is a popular radio talk show host in Denver. In a recent column for the Rocky Mountain News he made an error that one sees in the press with increasing frequency: that entering the country illegally is not a crime.

[18-year old Ron] Tapia was born in Mexico and entered the country illegally with his mother and sister. That makes him an illegal immigrant. As a citizen of another country, that also makes him an alien. He’s not a criminal in the sense of one who commits a violent crime. Entering our country illegally is a civil offense, not a criminal one.

True, he’s not a violent criminal, but he has violated a law that carries criminal, not just civil, sanctions:

Section 1325 [of Title 8, Chapter 12, Subchapter II, Part VIII]. [U.S. Code as of: 01/06/03]

Improper entry by alien

(a) Improper time or place; avoidance of examination or inspection;

misrepresentation and concealment of facts

Any alien who (1) enters or attempts to enter the United States

at any time or place other than as designated by immigration

officers, or (2) eludes examination or inspection by immigration

officers, or (3) attempts to enter or obtains entry to the United

States by a willfully false or misleading representation or the

willful concealment of a material fact, shall, for the first

commission of any such offense, be fined under title 18 or

imprisoned not more than 6 months, or both, and, for a subsequent

commission of any such offense, be fined under title 18, or

imprisoned not more than 2 years, or both.

(b) Improper time or place; civil penalties

Any alien who is apprehended while entering (or attempting to

enter) the United States at a time or place other than as

designated by immigration officers shall be subject to a civil

penalty of -

(1) at least $50 and not more than $250 for each such entry (or

attempted entry); or

(2) twice the amount specified in paragraph (1) in the case of

an alien who has been previously subject to a civil penalty under

this subsection.

Civil penalties under this subsection are in addition to, and not

in lieu of, any criminal or other civil penalties that may be

imposed.

This is not to say that young Ron has no defenses. If intent is required for culpability perhaps Ron and his sister were too young to be held responsible for violating this statute. That defense, however, would not work for his mother.

I have not researched this point thoroughly, and it is possible the above statute has been changed or amended., but I don’t think so. If it had, I doubt that Ron Brownstein would have written in the Los Angeles Times a few days ago that “[i]t is a crime to cross the border without authorization.”

Say What? (21)

  1. Federal Dog April 22, 2006 at 7:31 am | | Reply

    Mr. Rosenberg,

    You are correct: Illegal entry is a criminal misdemeanor. Illegal aliens are criminals, no matter how many lies the media spread about that fact fact.

  2. Cobra April 22, 2006 at 11:42 am | | Reply

    So Elian Gonzales got off easy, huh?

    –Cobra

  3. John Rosenberg April 22, 2006 at 11:52 am | | Reply

    Oh, now I get it. Illegal Cubans should be sent back to the workers’ paradise (especially little kids whose mothers drown getting them here), but illegal Mexicans should be given jobs, welfare, preferences, and citizenship….

  4. Cobra April 22, 2006 at 1:14 pm | | Reply

    John,

    Which foreign nationals should NOT be subject to

    Section 1325 [of Title 8, Chapter 12, Subchapter II, Part VIII]. [U.S. Code as of: 01/06/03, and for what reason?

    Why is Elian Gonzales different from Ron Tapia, or anybody else entering the country in a similar fashion?

    –Cobra

  5. h0mi April 22, 2006 at 1:26 pm | | Reply

    How does 4473 turn this into a felony? I’m unclear on that.

  6. John Rosenberg April 22, 2006 at 3:40 pm | | Reply

    Cobra asks:

    Why is Elian Gonzales different from Ron Tapia, or anybody else entering the country in a similar fashion?

    Because he was fleeing from a totalitarian dictatorship and deserved refugee status.

    homi asks:

    How does 4473 turn this into a felony? I’m unclear on that.

    I did not say that illegal entry was a felony. I said it was a crime. Any violation of the law that can land you in jail is a crime, even if the offense is a misdemeanor and not a felony.

  7. Michelle Dulak Thomson April 22, 2006 at 4:18 pm | | Reply

    Cobra,

    Why is Elian Gonzales different from Ron Tapia, or anybody else entering the country in a similar fashion?

    I think one plausible difference is that Cuban police and troops are authorized to shoot to kill people (including children) trying to leave Cuba, whereas Mexican police and troops are not authorized to kill people trying to leave Mexico; quite the contrary. When your own government is handing out “how-to” guides explaining the best way to cross into the US illegally, it’s reasonable to assume that the people taking the advice aren’t fleeing a totalitarian government that would rather see them dead than see them leave the country. Will that do as a basic, no-nonsense disctinction between the two cases?

  8. Cobra April 22, 2006 at 5:22 pm | | Reply

    John,

    That’s not the WHOLE story.

    >>>”The U.S. entered into a bi-lateral immigration agreement with Cuba in 1994. Under the new agreements, the United States agreed to stop admitting “all Cuban migrants who reach U.S. territory in irregular ways” while Cuba agreed to patrol its shores to stop the illegal immigrants from leaving and agreed to not take repercussions against those illegal immigrants returned to Cuba. The U.S. also agreed to admit 20,000 Cubans each year through a visa lottery program.

    Under the current U.S. policy, known as “wet feet, dry feet”, those Cubans who risk the trip and are able to reach U.S. soil are eligible to apply for admission under the 1966 Act, but those who are intercepted in the Florida Straits are returned to Cuba. Cuban officials believe the “wet feet, dry feet” policy is a violation of the 1994 agreement and encourages Cuban nationals to risk the dangerous trip. Richard Alarcon, president of the Cuban National Assembly and chief Cuban negotiator in the meetings, stated, “The most important issue we have to discuss, in my opinion, is smuggling. Nowhere in the agreements “has the U.S. or Cuba said that those who arrive there have guaranteed admission. In fact, the only reference is in the opposite direction.” He also blames the U.S. for not taking stronger steps to capture and prosecute alien smugglers.”

    Wet feet Dry feet Controversy

    And what category did Elian Gonzalez fall into?

    >>>”In November 1999, Elián, his mother, and twelve others fled Cuba on a small aluminum boat with a faulty engine; Elián’s mother and ten others died in the crossing. The boat was operated by his mother’s boyfriend, who resided in Miami and smuggled Cubans into the US for money (a felony under federal law). Elián and the other two survivors completed the journey across the Florida Straits on an inner tube. Elián was rescued at sea by two fishermen who then gave him to the US Coast Guard.”

    Wet Feet Elian

    In other words, Elian Gonzalez was every bit as much of an ILLEGAL ALIEN as Ron Tapia.

    Perhaps that answers Michelle’s question about nebulous Immigration laws here in America.

    –Cobra

  9. Dom April 22, 2006 at 7:56 pm | | Reply

    Cubans are routinely returned to Cuba, and there is hardly ever an outcry from the usual sources, not even from Hispanics or Jesse Jackson. Elian Gonzales was the exception. See http://www.elitestv.com/pub/2006/Jan/EEN43c2bb0292548.html the people mentioned in this article will probably be imprisoned in Cuba.

    In any case, there isn’t a “problem” with Cuban immigration. The Cuban government is not pushing them out, and the numbers arriving fall within the usual immigration guidelines.

  10. h0mi April 22, 2006 at 8:26 pm | | Reply

    I did not say that illegal entry was a felony.

    I know that. I looked at HR 4473 and wasn’t sure how HR 4473 turned this crime into a felony, which is why I asked.

  11. John Rosenberg April 22, 2006 at 10:18 pm | | Reply

    Cobra – Your comment here reminds me of something I wrote at the time of the Elian controversy — those who favored sending him back to Castro’s Cuba probably would have favored sending little Eliza (from Uncle Tom’s Cabin) back into slavery to her father, who was afraid to leave the plantation….

    If you’ll note, I was not making a legal point; I was distinguishing my own attitude toward refugees from totalitarian countries from my attidude toward illegal entrants from other countries. If it were up to me, the law would recognize that distinction.

  12. John Rosenberg April 22, 2006 at 10:27 pm | | Reply

    homi:

    I looked at HR 4473 and wasn’t sure how HR 4473 turned this crime into a felony, which is why I asked.

    I am not an expert on this, but it is my impression that the House bill contains language (supported by 36 Democrats) that would have made remaining in the country without authorization (overstaying visa, etc.) a crime, not that it would have converted illegal entry form a misdemeanor to a felony. When the Republicans tried to remove the felony provision, the Democrats objected, hoping that the blame for its presence would remain with the Republicans. So, at the moment (again, as I understand it), entering the country without proper authorization is a crime, but remaining here without it is only a civil violation.

  13. actus April 22, 2006 at 10:34 pm | | Reply

    “. I looked at HR 4473 and wasn’t sure how HR 4473 turned this crime into a felony, which is why I asked.”

    By increasing the punishment

  14. Cobra April 23, 2006 at 9:24 am | | Reply

    How can 36 Democrats “control” the actions of a REPUBLICAN majority in the House? If the Republicans who WROTE the law, and control ALL the committees didn’t want HR 4473 make illegal immigration a felony, they could have written the law as such in the FIRST PLACE. They chose not to.

    –Cobra

  15. sharon April 23, 2006 at 9:48 am | | Reply

    Cobra,

    You don’t know how the minority party can stop language from being changed in a bill? You need to go take some government classes, I guess.

  16. Cobra April 24, 2006 at 9:53 pm | | Reply

    Sharon writes:

    >>>”You don’t know how the minority party can stop language from being changed in a bill? You need to go take some government classes, I guess.”

    Not saying that at all. I’m just point out the reality of the situation, which is the current MAJORITY PARTY (the GOP) put the “controversial language” in the bill in the FIRST PLACE.

    >>>”H.R. 4437 (The Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005) was passed by the United States House of Representatives on December 16, 2005 by a vote of 239 to 182. It is also known as the “Sensenbrenner Bill,” for its sponsor in the House of Representatives,(R) Jim Sensenbrenner.”

    Authentically Republican

    Was it an “accident” that Sensenbrenner put in the felony clause? Come on, Sharon. I’m not the one who needs “classes” if you believe that.

    –Cobra

  17. sharon April 25, 2006 at 6:43 am | | Reply

    I am not saying the Democrats put the felony language in there. I’m saying that it is disengenuous to act as though they are not playing politics with this bill any less than Republicans. They like having illegal immigrants here. With motor voter, they can garner a few new votes.

  18. Padonak May 2, 2006 at 9:53 am | | Reply

    Under the current U.S. policy, known as “wet feet, dry feet”, those Cubans who risk the trip and are able to reach U.S. soil are eligible to apply for admission under the 1966 Act, but those who are intercepted in the Florida Straits are returned to Cuba. Cuban officials believe the “wet feet, dry feet” policy is a violation of the 1994 agreement and encourages Cuban nationals to risk the dangerous trip. Richard Alarcon, president of the Cuban National Assembly and chief Cuban negotiator in the meetings, stated, “The most important issue we have to discuss, in my opinion, is smuggling. Nowhere in the agreements “has the U.S. or Cuba said that those who arrive there have guaranteed admission. In fact, the only reference is in the opposite direction.” He also blames the U.S. for not taking stronger steps to capture and prosecute alien smugglers.”

  19. Bill May 2, 2006 at 4:35 pm | | Reply

    Just from reading above, I am writing a blog for my New Republicanism platform; I believe the House bill you are referring to is HR4437, not HR4473.

  20. ms villalpando September 16, 2006 at 12:11 pm | | Reply

    illegal is illegal, parents are resposible, they should be deported as . as us citizens they can come back when they turn 18..

  21. Gorth Duark July 26, 2012 at 5:29 pm | | Reply

    curious about 2 points: How does a typical Mexican border jumper get ID? Is it a phony driver’s license printing in San Diego? Do they use 1 single “John Doe” (or probably Juan Diez, to make it seem more ‘believable’) that accumulates social security from 10,000 Mexicans? (wow what a retirement fund)? Surely they don’t walk graveyards searching for dead infants that match their age, then write to Births & Deaths for replacement IDs.
    And all one hears in the news is that the caught are sent to a dentention center, then given a ride back to Mexico – and all the stuff above about 36 months in jail is simply ignored?

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